Jacobs v The Queen

• Jurisdiction: St Vincent and the Grenadines
• Judge: Redhead, J.A.
• Judgment Date: 06 March 2003
• Neutral Citation: VC 2003 CA 7
• Docket Number: Criminal Appeal No. 5 of 2002
• Court: Court of Appeal (Saint Vincent)
• Date: 06 March 2003

Court of Appeal

Redhead, J.A.; Georges, J.A. (Ag.); Alleyne, J.A. (Ag.)

Criminal Appeal No. 5 of 2002

Jacobs

and

The Queen

Appearances:

Mr. Carlyle Dougan Q.C.; Ms. Kay Bacchus-Browne with him for the appellant.

Mr. Roger Gaspard DPP; Ms. Suenel Fraser, Crown Counsel with him for the respondent.

Criminal law - Appeal against conviction of murder — Misdirection in the definition of murder — Standard of proof — Lack of distinction between recklessness and intention — Issue of self-defence — Judge under no duty to leave self-defence to the jury — Onus of the prosecution to negative the defence of provocation — Criminal Code of St. Vincent — Unfairness and imbalance of summing up — Whether the verdict was unsafe and unsatisfactory — Having regard to the misdirections on manslaughter and definition of murder conviction for murder set aside — Conviction for manslaughter substituted — Like imprisonment substituted with 25 years imprisonment.

Practice and procedure - Directions to jury in case in which appellant was convicted ofmurder and sentenced to life imprisonment — Whether there were misdirections on the definition of murder, standard of proof, distinction between recklessness and intention, self defence and provocation — Criminal Code of St. Vincent — Finding of court that having regard to misdirections on manslaughter and murder, the conviction for murder would be set aside — Conviction for manslaughter substituted for conviction for murder and life imprisonment changed to imprisonment for 25 years.

Redhead, J.A.

1 The appellant was convicted of the murder of Curtis Fredericks and was sentenced to life imprisonment. He now appeals to this Court against his conviction and sentence.

2 The case presented by the Crown was contained in the evidence given more particularly by two of the Crown witnesses Aaron Fredericks and Julian Caine.

3 Aaron Fredericks testified that on Friday 1st December 2001 he attended a show at Victoria Park in St. Vincent. The performers at that show were Jamaican artistes. Two witnesses claimed that about 30,000 to 40,000 persons attended the show. This witness testified that he was enjoying himself in a way that is most unimaginable to my mind. In that he was drinking Guinness, jumping and throwing Guinness all around the place. He said that he “fired” a bottle in the air and a fellow by the name of Norman who was at the bar came to him and said that a piece of splinter from the bottle hit him across his face. He said five of his friends came up to him and asked him if he wanted “war”. This witness's friends in turn came up to him and explained what happened. Fredericks said under oath:

“Bottles started to fire all over the place and people started scattering. I bumped into Dopey [the appellant] … Dopey pushed me as I bumped into him. One of my friends behind me fired a bottle which lashed him (Dopey) in his face. He ‘dipped’ in waist with his hand and I ran a distance from him. I stopped and was looking at him. My brother [the deceased] was standing on the other side. His name is Curtis Frederick. Dopey started to chase him. He was bawling, ‘It is not me’ Curtis was bawling so. Dopey fired a shot, which caught him in his hand and he fell on the ground. Dopey ran over to Curtis’ left side. Curtis was trying to get up. He was on his right side trying to rise up from that side. Dopey shot him from his left buttocks. Curtis stretched out and started to bawl on the ground. Dopey ran. I gave chase after him. He ran towards the gate near to Gibson Building Supplies. He ran in front of an SSU officer I ran to that SSU officer and held his hand… He [the SSU officer] pulled out his firearm and started to chase Dopey.”

4 Julian Caine who is a Police Constable, an SSU officer, said on oath that at about 5:30 p.m. he was dispatched on duty at Victoria Park. He was dressed in camouflage with other SSU personnel. At about 2:15 a.m. on 2nd December 2000 he was at a bar at the eastern end of Victoria Park. He observed that the people who were gathered in front of the stage where the concert was taking place began running in all directions. This created an open space. He then observed that the appellant was running behind another man. The appellant then pointed his right hand at the said man. He noticed an object which appeared to be a gun. He then heard an explosion which sounded like a gunshot to him. He then saw the appellant standing over the said man for about one minute. The appellant then ran towards the gate which is situated on the eastern side of Victoria Park. This witness said he then left where he was standing and ran for about 110 feet towards the appellant. According to P.C. Caine the appellant on recognizing his presence turned back and ran towards the stage. He said that he fired one shot in the air from his 45 pistol in an attempt to slow down the appellant. P.C. Caine said that the appellant was caught about 350 feet from where he first tried to intercept the appellant. This witness testified that the object he saw in the appellant's right hand appeared to be a gun. The appellant had the object in his right hand while he was standing over the fallen man. P.C. Caine said that he heard a second explosion, a gunshot which came from the direction of the appellant.

5 P.C. Caine said that before the incident he had known the appellant for about two or three years and he would see him mostly on weekends.

6 P.C. Caine testified that when he first saw the appellant running after the man on the morning of the incident he was about 15 meters away from the appellant. He said Victoria Park was “well lighted” that morning by floodlights. Victoria Park was bright. This witness also said that nothing was obstructing his view of the appellant and the fallen man.

7 In cross-examination P.C. Caine said that he never lost sight of the appellant. He was watching him all the time. He actually caught him.

8 Eight grounds of appeal were filed on behalf of the appellant. The appellant by application was granted leave to add another ground of appeal.

9 I deal with that additional ground of appeal first. The appellant through his learned counsel, alleges that ‘the learned trial judge misdirected the jury on the definition of murder.’

10 At page 38 line 25 of the record the learned trial judge instructed the jury as follows: “Now murder simply defined is causing grievous bodily harm with intent or by a reckless act resulting in the death of a person.”

11 “A reckless act resulting in death of a person” that to my mind is the definition of manslaughter for example where there was a number of persons gathered, for instance, as was the case at Victoria Park and one pulls out a gun randomly not intending to kill or cause grievous bodily harm to any one but someone is accidentally shot and died as a result in those circumstances. In that regard it could be said that that person who pulled out the gun acted recklessly and thereby may be guilty of manslaughter. But certainly this was not the prosecution's case which I shall return to shortly.

12 Further on the learned trial judge told the jury to ground the charge of murder the prosecution would have to prove to you that there was an intention to kill. Although the standard of proof is left out from that direction, it is not otherwise flawed. But unfortunately the learned trial judge fell into serious error again. Continuing he said “or there was a reckless act on the part of the accused which led to the death of the deceased”. In my view this does not and cannot establish the offence of murder.

13 To compound this unfortunate error the learned trial judge went on at page 39 of the record to tell the jury:

“Secondly, you can also look at the act as being a reckless act with an intention to cause grievous bodily harm because look at the confines of Victoria Park. We are told that there was (sic) about 30,000 to 40,000 people there, a show comprised of artistes from Jamaica … Now if you take a gun of that calibre in the confines of Victoria Park and fire this weapon twice aiming at somebody what is your intention? That whole scenario clearly tells you that this is a reckless act; recklessness on the part of whoever had the gun…”

14 To my mind to speak of a reckless act with intention is clearly a contradiction in terms. Recklessness is where a person who does not intend to cause a harmful result takes an unjustifiable risk of causing it. If he does so he may be held to be reckless”. See Smith and Hogan Criminal Law 6th Ed. Page 61. Intention on the other hand, is said that when one intends something that one sets out to bring about a desired result.

15 It is quite apparent to me that there was a lack of appreciation of the concepts, intention as distinct from recklessness. It also indicates to my mind that there was a failure of appreciation that the word “reckless” when used particularly in relation to the offence of murder connotes a special significance in that once it is alleged that the person charged with murder that his act which brought about the death of the deceased was reckless then the issue of manslaughter arises. Because it means that he would not have had the specific intent to kill or cause grievous bodily harm which is the requisite intention necessary for the prosecution to prove in order to establish the crime of murder.

16 The prosecution's case was that the appellant deliberately and intentionally shot the deceased. Whereas the appellant's defence was a straight denial. There was not even a suggestion in the case that the act of the appellant which resulted in the death of the deceased was a reckless one.

17 In Woollin v. Regina [1998] 3 W.L.R. 382 8 the appellant lost his temper and threw his three-month old son onto a hard surface. The son sustained a fractured skull and died. The appellant was charged with murder. The prosecution did not contend...